Dan Carpenter: Questions left off voucher court test

Nov. 23, 2012

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The Indiana Constitution prohibits the use of public funds to support religious institutions, and that's exactly what the educational voucher program does -- 97 percent of the participants are faith-based schools.

The question before the Indiana Supreme Court and a packed gallery on Wednesday morning was a technical one: Is the benefit direct or incidental?

If the state persuades the court that the Choice Scholarship plan hinges on parental decisions -- even though the money flows not to them but to the schools they've chosen, without restrictions on how it's spent -- it may beat back a challenge to one of the Daniels administration's signature policy changes.

If that happens, opponents say, disingenuous hair-splitting will have trumped the needs of public school pupils who make up the vast majority of the state's children.

Other questions went unasked by the justices but were much on the minds of many in the crowd. Most pertinent: If vouchers are being sold as a way for low-income kids to escape poor-performing public schools, why is there no performance standard either for the school they leave or the one to which they move?

With a core principle at issue and nearly $40 million at stake -- voucher signees have tripled to more than 9,000 in the program's second year -- the venerable chamber played host to a who's who of interested parties, including state Superintendent of Public Instruction Tony Bennett, Attorney General Gregory Zoeller and leaders of the Indiana Catholic Conference and Indiana State Teachers Association, the last of which spearheaded the lawsuit against vouchers and lost at the trial court level.

The justices, most notably Steven David and Robert Rucker, gave them a fruitful hour, prodding attorneys from both sides with well-distributed skepticism.

It was a query from Rucker that may have spoken most resoundingly, in large part because of what he left unsaid.

He asked Indiana Solicitor General Thomas Fisher whether parents truly had a choice "if nothing is available but religious schools and the parents have either the underperforming public school or the high-caliber superior religious school?"

Fisher replied that there is a choice to opt out entirely. Mark GiaQuinta would say the justice begged the question.

He's the board president of Fort Wayne Community Schools, which has lost $7 million to vouchers this year. His hardest-hit school was rated A by the state, he said; and the religious school that drew the most away was rated F.

"The idea this is providing an opportunity for poor children to leave bad schools is nonsense," he declared before the hearing. "I said to Tony (Bennett), 'If this is truly providing an opportunity to leave a failing school for a successful one, why not make that a criterion? Maybe the other school just needs a quarterback.' "

Part of a bundle of reforms fast-tracked by the General Assembly, vouchers are not alone in leaving unanswered questions affecting daily life in public schools. A Supreme Court decision on what opposing attorney John West scornfully dubbed a "metaphysical" point by the state will come far short of removing those legal, political and educational snags.